You may be surprised to learn that physicians may often disregard your wishes concerning life sustaining treatment if you become incapacitated in later life, particularly during surgery or need artificial nutrition via feeding tubes and cannot communicate your wishes.
You can act to ensure your wishes will be followed by signing two critical advance directives: a “living will,“ for which a better name is “health care directive,” and a health care proxy, sometimes referred to as a “power of attorney for health care.” A clearly written heath care directive is evidence of your wishes, and the health care proxy appoints a trusted person to advocate for them and ensure they will be honored; re: unable to speak for yourself. It is not uncommon that physicians may not honor your treatment wishes, although the law is shifting throughout the states though court decisions that sanction health care providers who do not honor a patient’s clearly expressed treatment decisions.
Creating a health care directive (“HCD”) ensures your future health care decisions and wishes are honored. The HCD, an advance directive, is a legal document outlining medical treatment preferences and end-of-life care you wish to forgo if you become incapacitated and can’t communicate or make decisions for yourself. Everyone should have advance directives, as end-of-life situations can happen at any age due to accident or illness.
Medical Treatment Decisions
The HCD document identifies medical treatments you would (or wouldn’t) accept to keep you alive. It may include other medical decisions, such as pain management.
Consider the following: how important are self-sufficiency and independence to you? What circumstances may make you feel life is no longer worth living? Do you want to be alive at all costs even if you are suffering and death may be imminent, or would you only want treatment if it could ease your suffering?
You can address many end-of-life care scenarios in your HCD. Here are some common treatment situations that you need to consider:
- Cardiopulmonary resuscitation (CPR) – CPR restarts the heart when it has stopped beating. It can be done manually (chest compressions) or mechanically (defibrillator).
- Mechanical ventilation – Takes over the job of breathing if you can’t breathe on your own.
- Tube feeding – Also known as “artificial feeding” supplies the body with fluids and nutrients via nasal-gastric tubes intravenously or through a tube in the stomach (PEG).
- Dialysis – Manages fluid levels and removes waste from your blood if your kidneys do not function properly.
- Antibiotics or antivirals – Treats many infections. Would you prefer aggressively using pharmaceutical treatments if you are near the end of your life?
- Palliative or comfort care – Includes various ways to keep you comfortable, managing pain while abiding by other designated treatment choices. You may choose to die at home or receive strong pain medications, avoiding other invasive treatments or tests.
- Organ and tissue donation – Permits temporary life-sustaining treatment until the organ removal procedure is complete.
- Donating your body to science – Makes your body available for scientific study at a medical school or university program.
Health Care Proxy
A health care proxy (in some states known as a medical power of attorney) is an advance directive that appoints an advocate (the “health care agent”) to make medical decisions for you in accordance with you wishes, best expressed in your health care directive, which should also be accompanied by conversations with your choice of agent and other family members. Depending on your state, the name for the person you choose to advocate for you wishes may vary, such as agent, proxy, or surrogate.
State laws regarding your HCP, as well as your HCD vary. Following state legal requirements is imperative to ensure your advance directives are valid. Retaining the services of an estate planning attorney can ensure your advance directives comply with laws in your state, such as witnessing and notarizing your documents.
Who should you appoint as your health care agent?
Selecting the right individual to act as your health care agent is critical. It’s impossible to anticipate every situation, and your health care agent may have to make a judgment about your care wishes, particularly if you have not signed advance directives. Your attorney may encourage you to select one or more alternates in case your first choice can’t fulfill the role. Usually, state law allows only one person to serve as your health care agent at a time. Choose an agent who meets the following criteria:
- Perhaps most important: you trust them to make decisions that adhere to your values and wishes. It’s not how much medical knowledge your selection has but whether your choice has the psychological and ethical willingness to act in accordance with your wishes and not what she or he believes is best for you (“I’ll appoint my daughter the physician”).
- They meet your state’s health care agent requirements
- They aren’t your physician or a member of your medical team
- They are willing and capable of discussing medical care and end-of-life issues with you
- You trust them to advocate on your behalf if there are disagreements about your care.
DNRs and DNIs
A do not resuscitate (DNR) and do not intubate (DNI) order is not an advance directive. They are medical orders signed by a physician who can make them as part of your medical record. Although you may have a health care directive that addresses DNR and DNI orders, have a physician create these individual documents each time you’re admitted to a new health care facility or hospital. Speak to your attorney about how these documents can be posted in your home so emergency teams will see them.
Physician Orders for Life-sustaining Treatment (POLST)
Some states have enacted statutes authorizing an order dealing with your end of life decisions for life-sustaining treatment (POLST) or called in some states a medical order for life-sustaining treatment (MOLST) document, a type of advance directive, but as a physician’s order it is usually honored.
POLSTs and MOLSTs address patients already diagnosed with a serious illness. This form doesn’t replace your directives; it provides instructions for the doctor that reflect the treatment you prefer. Your doctor fills out the form based on conversations you’ve had about the likely course of your illness and your treatment preferences.
Creating Advance Directives
After reflecting on your end-of-life wishes, meet with your doctor and attorney. They can help create the written content for your advance directives. Your lawyer can help prepare the forms specific to your state, as some may require a witness or notary.
Once your documents are complete, take the following steps:
- Keep the originals in an easily accessible but safe location.
- Provide a copy to your doctor, health care agent, and any alternate agents.
- Keep a list of the people who have your advance directives.
- Talk to your family and other loved ones about your health care wishes. Provide clarity to family members to prevent conflict or guilt during difficult times.
- Carry a wallet-sized card indicating you have advance directives and a health care agent, as well as who has copies.
- Travel with a copy of your advance directive or your “wallet card.”
Making Changes to Advance Directives
You can change your advance directives whenever you wish if you have not lost the capacity to do so. Make sure the appropriate persons have a copy of your new advance directive forms, distribute new copies to them, and destroy all old copies. Some states have specific requirements for changing directives, so consult your estate planning lawyer about relevant laws.
Discuss any advance directive changes with your primary care physician and provide them to hospital or nursing home charts at the time of admission.
Review and update your advance directives in case of a new medical diagnosis, a marital status change, or about every five years. Regular review of your advance living will ensures they still reflect your wishes.
In summary, roadblock of some health care providers will prevent compliance with your wishes unless your designated agents and family members understand them are satisfied they will honor and advocate lor them you are unable to do so. Seek help from an experienced trusts and estates planning lawyer such as Pierro, Connor & Strauss to discuss these critical issues and assist in preparing the necessary documents.
